Mealey's Elder Law

  • August 16, 2022

    10th Circuit Deems Medicare Claims Moot Due To HHS Ruling Granting Coverage

    DENVER — The 10th Circuit U.S. Court of Appeals on Aug. 12 dismissed a Medicare beneficiary’s appeal of a district court order denying her claims for coverage of a continuous glucose monitor (CGM) under Medicare Part B, finding that a May Centers for Medicare and Medicaid Services (CMS) ruling rescinding a 2017 ruling disallowing Medicare Part B coverage for a CGM that is not “primarily and customarily used to serve a medical purpose” makes her claims moot.

  • August 11, 2022

    Oral Argument Set In High Court Debate Over Nursing Home Residents’ Rights

    WASHINGTON, D.C — The U.S. Supreme Court on Aug. 3 set an oral argument date of Nov. 8 after the U.S. government and four other entities filed amicus curiae briefs urging the high court to reverse the Seventh Circuit U.S. Court of Appeals’ ruling that the Federal Nursing Home Reform Act (FNHRA) confers a private right of action to nursing home residents.

  • August 10, 2022

    Split 6th Circuit Sets Causality Standard, Reinstates Worker’s Bias Claims

    CINCINNATI — A federal employee bringing age and disability bias claims under the Age Discrimination in Employment Act (ADEA) and Section 501 of the Rehabilitation Act must show that the bias was the “but-for” cause of an adverse employment act, a split panel of the Sixth Circuit U.S. Court of Appeals ruled July 27 before reversing summary judgment for the employer and remanding the case for a jury to decide.

  • August 08, 2022

    Judge Denies Dismissal In Disability Discrimination Suit Against Condo Owners

    BROOKLYN, N.Y. — A New York federal judge on Aug. 4 denied dismissal of a suit filed against condominium owners and its designer by a nonprofit alleging failure to design and construct housing accessible for disabled persons in violation of the Fair Housing Act (FHA) and several New York laws, finding that the plaintiff adequately pleaded facts to state a claim for an FHA violation and that the owners failed to provide any additional basis for dismissing the state law claims.

  • August 05, 2022

    Maryland Panel Affirms Holding Deeming Codicil ‘Facially Valid’ In Will Dispute

    ANNAPOLIS, Md. — A Maryland appellate court on July 28 affirmed a circuit court order determining that a handwritten codicil to a will revoking a real property bequest to the decedent’s son was “facially valid,” finding that the court did not err by ruling that the son failed to meet his burden of proof to show that the codicil was invalid.

  • August 05, 2022

    Federal Judge Rejects Former Employee’s Claims To Proceeds Of PPP Loan

    PHILADELPHIA — A former employee of a tourism-based business in Philadelphia that received two Paycheck Protection Program (PPP) loans can’t lay claim to those funds after being fired as the employer “had discretion to spend the proceeds of its PPP loans as it saw fit, as long as it faced the consequences,” a federal judge in Pennsylvania ruled Aug. 3, granting the motion for partial dismissal in the lawsuit that also brings claims for age bias.

  • August 04, 2022

    Connecticut Judge Dismisses Appeal Of Long-Term Care Medicaid Benefits Denial

    NEW BRITAIN, Conn. — A Connecticut judge on July 25 dismissed an appeal of a hearing officer’s denial of long-term care Medicaid benefits for an estate administrator’s mother, finding that the administrator failed to show, among other things, that the hearing officer’s final decision was “arbitrary or capricious or characterized by abuse of discretion.”

  • August 04, 2022

    Citing Dismissal Of Underlying Suit, 2nd Circuit Tosses COVID Death Suit Appeal

    BROOKLYN, N.Y — The Second Circuit U.S. Court of Appeals on Aug. 1 granted a nursing home’s motion to dismiss its appeal of a wrongful death suit filed by the son of a man who contracted COVID-19 and died there, finding that because the son voluntarily dismissed the underlying state court suit, the Second Circuit cannot order “any effective relief.”

  • August 04, 2022

    Panel Reverses Dismissal Of Petition To Revoke POA, Cites Abuse Of Discretion

    SAN DIEGO — A California appellate court on July 21 reversed and remanded a probate court order dismissing a daughter’s petition to revoke her brother’s authority as attorney-in-fact for their father pursuant to a durable power of attorney (DPOA), finding that the court incorrectly dismissed the petition absent consideration of “competent evidence” or “holding an evidentiary hearing” because it lacked evidence regarding the father’s mental capacity to execute a power of attorney.

  • August 02, 2022

    Texas Panel Affirms Order Finding Decedent’s Son ‘Unsuitable’ As Executor

    TYLER, Texas — A Texas appellate court on July 29 affirmed a trial court’s order determining that a son was “unsuitable” as executor of his mother’s estate, finding that the trial court did not act “arbitrarily, unreasonably, or without reference to guiding rules and principles” in denying the son’s application to be executor.

  • August 02, 2022

    Tennessee Panel Deems Nursing Home Arbitration Agreement ‘Adhesive,’ Unenforceable

    KNOXVILLE, Tenn. — A Tennessee appellate court on July 29 affirmed a trial court’s order denying a nursing home’s motion to compel arbitration in a health care liability suit filed by the daughter of a former resident, finding that the arbitration agreement was an “adhesion” contract because the daughter had no alternative but to sign to obtain adequate care for her mother and that it was unenforceable because it was “buried” in the admission contract.

  • August 01, 2022

    7th Circuit Denies Rehearing After Split Panel Orders Trial In Age Bias Suit

    CHICAGO — The Seventh Circuit U.S. Court of Appeals on July 28 denied a petition for rehearing or rehearing en banc filed by an employer accused of failing to stop repeated verbal and physical harassment of an employee due to his age after a divided panel vacated summary judgment for the employer and remanded the case for a trial.

  • July 29, 2022

    Relators Reinforce Appeal In Suit Alleging Employer Fraudulently Billed Medicare

    PHILADELPHIA — In a July 21 reply brief filed in the Third Circuit U.S. Court of Appeals, relators reiterated their argument seeking reversal of a Pennsylvania federal court’s summary judgment ruling in favor of their former employer in their lawsuit alleging that it fraudulently billed Medicare and Medicaid by admitting and recertifying patients for hospice who were not actually eligible for hospice, contending that the Centers for Medicare & Medicaid Services (CMS) “has made clear that the requirement of medical record documentation supporting hospice certification is a substantial requirement.”

  • July 29, 2022

    Citing 2nd Circuit On ERISA Vesting, Judge Certifies Class In Lifetime Benefits Row

    ROCHESTER, N.Y. — Citing Second Circuit U.S. Court of Appeals law regarding vesting of welfare benefits under the Employee Retirement Income Security Act, a New York federal judge on July 26 granted plaintiffs’ motion for class certification in a dispute over premium payments for retirees’ medical and dental care.

  • July 29, 2022

    6th Circuit Says Substantial Evidence Test Met In Social Security Benefits Denial

    CINCINNATI  — The Sixth Circuit U.S. Court of Appeals on July 27 affirmed a district court decision upholding the determination of an administrative law judge (ALJ) that a man seeking disability insurance benefits and supplemental security income through the Social Security Administration (SSA) did not have a disability under the terms of the Social Security Act, finding that a vocational expert’s testimony at the man’s ALJ “hearing amounted to substantial evidence supporting the ALJ’s decision.”

  • July 28, 2022

    Panel Deems Grandparent Visitation Not Unreasonable, In Child’s Best Interest

    NASHVILLE, Tenn. — A Tennessee Court of Appeals on July 25 affirmed a trial court order granting visitation to maternal grandparents, finding that the lower court did not err in determining that grandparent visitation was in the child’s best interest following the parents’ divorce and mother’s death because factors such as the quality of the child’s relationship to the grandparents and the emotional ties with them “weigh in favor of ordering visitation.”

  • July 27, 2022

    Government Urges Reversal In High Court Debate Over Nursing Home Residents’ Rights

    WASHINGTON, D.C —  The U.S. government was one of four entities filing amicus curiae briefs on July 25 urging the U.S. Supreme Court to reverse the Seventh Circuit U.S. Court of Appeals’ ruling that the Federal Nursing Home Reform Act (FNHRA) confers a private right of action to nursing home residents, a week after the nursing home at the heart of the case filed its petitioner brief.

  • July 27, 2022

    Utility Seeks Cert For Row With Tribe Over Cutting Power To Elderly Tribesman

    WASHINGTON, D.C. — The U.S. Supreme Court needs to decide whether the Crow Tribe in Montana has jurisdiction over a nonprofit electric cooperative for allegedly violating tribal law by disconnecting power to an elderly tribal member who lives on tribal trust land, the cooperative says in a July 19 petition for a writ of certiorari.

  • July 27, 2022

    High Court Approves Extension In Care Home Challenge To Remand Of COVID Death Suit

    WASHINGTON, D.C. — As circuit justice for the Ninth Circuit U.S. Court of Appeals, U.S. Supreme Court Justice Elena Kagan on July 12 granted a nursing home’s application for an extension until Aug. 29 to file a petition for writ of certiorari challenging the Ninth Circuit’s affirmance of a district court’s order remanding to state court a wrongful death suit filed by the family of a man who died in the nursing home after contracting COVID-19.

  • July 27, 2022

    Texas Panel Says Expert Report Met Causation Standard In Care Home Liability Suit

    HOUSTON — A Texas appellate court on July 14 affirmed a trial court order denying a nursing home’s motion to dismiss a health care liability suit filed against it by the estate representative of a woman who died at the nursing home, finding that the representative’s expert witness report complied with the statutory “standard of care, breach, and causation requirements and that the trial court did not abuse its discretion” in denying the motion to dismiss.